UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION MDL No. 1775 06-MD-1775 (BMC) (VVP) THIS DOCUMENT RELATES TO: All Actions ORAL ARGUMENT REQUESTED PLAINTIFFS’ NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT WITH DEFENDANT AIR INDIA LTD PLEASE TAKE NOTICE THAT, upon the Declaration of Brent W. Landau in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement with Defendant Air India Ltd., dated May 19, 2016, along with its supporting exhibit, the Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement with Defendant Air India Ltd., dated May 19, 2016, and all prior papers and proceedings, Plaintiffs will move this Court on a date and time to be set by the Court, before the Honorable Brian M. Cogan, United States District Judge, in courtroom 8D South at the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York, pursuant to Rule 23 of the Federal Rules of Civil Procedure, to enter an order: (1) Preliminarily approving the Settlement Agreement between plaintiffs and Air India Ltd. with an Execution Date of May 17, 2016 on the grounds that its terms are sufficiently fair, reasonable, and adequate for notice to be issued to the Class; (2) Ordering Class Counsel to submit at a later date proposed notices for approval by the Court of the form of notice and the notice plan; (3) Approving The Garden City Group as administrator of the settlement, and Citibank N.A. as escrow agent; and (4) Granting such other and further relief as may be appropriate. Oral argument on this motion, if any, will be held on a date and time set by the Court. Case 1:06-md-01775-BMC-VVP Document 2461 Filed 05/19/16 Page 1 of 2 PageID #: 111613
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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK
IN RE
AIR CARGO SHIPPING SERVICESANTITRUST LITIGATION
MDL No. 1775
06-MD-1775 (BMC) (VVP)
THIS DOCUMENT RELATES TO:All Actions
ORAL ARGUMENT REQUESTED
PLAINTIFFS’ NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT
WITH DEFENDANT AIR INDIA LTD
PLEASE TAKE NOTICE THAT, upon the Declaration of Brent W. Landau in Support
of Plaintiffs’ Motion for Preliminary Approval of Settlement with Defendant Air India Ltd.,
dated May 19, 2016, along with its supporting exhibit, the Memorandum of Law in Support of
Plaintiffs’ Motion for Preliminary Approval of Settlement with Defendant Air India Ltd., dated
May 19, 2016, and all prior papers and proceedings, Plaintiffs will move this Court on a date and
time to be set by the Court, before the Honorable Brian M. Cogan, United States District Judge,
in courtroom 8D South at the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New
York, pursuant to Rule 23 of the Federal Rules of Civil Procedure, to enter an order:
(1) Preliminarily approving the Settlement Agreement between plaintiffs and Air India Ltd. with an Execution Date of May 17, 2016 on the grounds that its terms are sufficiently fair, reasonable, and adequate for notice to be issued to the Class;
(2) Ordering Class Counsel to submit at a later date proposed notices for approval by the Court of the form of notice and the notice plan;
(3) Approving The Garden City Group as administrator of the settlement, and Citibank N.A. as escrow agent; and
(4) Granting such other and further relief as may be appropriate.
Oral argument on this motion, if any, will be held on a date and time set by the Court.
Case 1:06-md-01775-BMC-VVP Document 2461 Filed 05/19/16 Page 1 of 2 PageID #: 111613
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Dated: May 19, 2016 Respectfully submitted,
Robert N. Kaplan Gregory K. ArensonElana KatcherKAPLAN FOX & KILSHEIMER LLP850 Third Avenue, 14th FloorNew York, NY 10022(212) 687-1980
Gary L. Specks KAPLAN FOX & KILSHEIMER LLP423 Sumac RoadHighland Park, IL 60035(847) 831-1585
By: /s/ Robert N. Kaplan
Michael D. HausfeldBrent W. LandauHilary K. ScherrerMelinda R. CoolidgeHAUSFELD LLP1700 K Street, N.W., Suite 650Washington, DC 20006(202) 540-7200
By: /s/ Brent W. Landau
Hollis L. Salzman Meegan F. HollywoodROBINS KAPLAN LLP601 Lexington Ave, Suite 3400New York, NY 10022Telephone: (212) 980-7400Facsimile: (212) 980-7499
By: /s/ Hollis L. Salzman
Howard J. SedranAustin B. CohenKeith J. VerrierLEVIN, FISHBEIN, SEDRAN & BERMAN
510 Walnut StreetPhiladelphia, PA 19106(215) 592-1500
By: /s/ Howard J. Sedran
Class Counsel
Case 1:06-md-01775-BMC-VVP Document 2461 Filed 05/19/16 Page 2 of 2 PageID #: 111614
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK
IN RE
AIR CARGO SHIPPING SERVICESANTITRUST LITIGATION
MDL No. 1775
Master File 06-MD-1775 (BMC) (VVP)
THIS DOCUMENT RELATES TO:All Actions
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT
WITH DEFENDANT AIR INDIA LTD.
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TABLE OF CONTENTSPage
I. INTRODUCTION .............................................................................................................. 1
II. BACKGROUND ................................................................................................................ 1
A. The Litigation................................................................................................................ 1
B. Settlement Negotiations ................................................................................................ 4
1. The Class............................................................................................................5
2. The Settlement Fund ..........................................................................................5
3. The Release........................................................................................................6
III. ARGUMENT...................................................................................................................... 7
A. The Settlement of Complex Litigation Is Favored ....................................................... 7
B. The Proposed Settlement Exceeds the Standards for Preliminary Approval................ 7
1. The Proposed Settlement Is the Result of Arm’s-Length Negotiations Conducted by Highly Experienced Counsel.................................9
2. The Proposed Settlement Falls Within the Range of Possible Approval. .........................................................................................................11
C. Notice to the Class ...................................................................................................... 12
IV. PRELIMINARY APPROVAL ORDER .......................................................................... 12
V. CONCLUSION................................................................................................................. 13
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TABLE OF AUTHORITIES
Page(s)
Cases
In re Air Cargo Shipping Servs. Antitrust Litig.,240 F.R.D. 56 (E.D.N.Y. 2006) ...............................................................................................10
In re Air Cargo Shipping Servs. Antitrust Litig.,No. 06-md-01775, 2011 WL 2909162 (E.D.N.Y. July 15, 2011) .................................7, 10, 11
In re Air Cargo Shipping Servs. Antitrust Litig.,No. 06-md-1775, 2009 WL 3077396 (E.D.N.Y. Sept. 25, 2009)....................................7, 9, 11
In re Air Cargo Shipping Servs. Antitrust Litig.,No. 06-md-1775, 2012 WL 3138596 (E.D.N.Y. Aug. 2, 2012) ..............................................10
Bano v. Union Carbide Corp.,273 F.3d 120 (2d Cir. 2001).......................................................................................................7
Bourlas v. Davis Law Assocs.,237 F.R.D. 345 (E.D.N.Y. 2006) ...........................................................................................7, 9
In re Chambers Dev. Sec. Litig.,912 F. Supp. 822 (W.D. Pa. 1995)...........................................................................................12
City of Detroit v. Grinnell Corp.,495 F.2d 448 (2d Cir. 1974).................................................................................................9, 12
In re Currency Conversion Fee Antitrust Litig.,No. 01 MDL 1409, 2006 WL 3247396 (S.D.N.Y. Nov. 8, 2006) .............................................8
In re Global Crossing Sec. & ERISA Litig.,225 F.R.D. 436 (S.D.N.Y. 2004) .....................................................................................7, 8, 11
In re Joint E. & S. Dists. Asbestos Litig.,878 F. Supp. 473 (E.D.N.Y. 1995) ..........................................................................................10
In re Med. X-Ray Film Antitrust Litig.,No. CV 93-5904, 1997 WL 33320580 (E.D.N.Y. Dec. 26, 1997) ............................................8
In re NASDAQ Mkt.-Makers Antitrust Litig.,176 F.R.D. 99 (S.D.N.Y. 1997) .......................................................................................1, 8, 11
In re NASDAQ Mkt.-Makers Antitrust Litig.,187 F.R.D. 465 (S.D.N.Y. 1998) .......................................................................................10, 11
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In re PaineWebber Ltd. P’ships Litig.,171 F.R.D. 104 (S.D.N.Y. 1997), aff’d, 117 F.3d 721 (2d Cir. 1997).....................................10
In re Sterling Foster & Co. Sec. Litig.,238 F. Supp. 2d 480 (E.D.N.Y. 2002) .....................................................................................10
In re Twinlab Corp. Sec. Litig.,187 F. Supp. 2d 80 (E.D.N.Y. 2002) .......................................................................................10
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,396 F.3d 96 (2d Cir. 2005).........................................................................................................8
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I. INTRODUCTION
Plaintiffs have negotiated a settlement with defendant Air India Ltd. (“Air India”) in the
amount of $12,500,000.00 (the “Settlement Amount”).1 Because this is an excellent result for the
Class, plaintiffs seek preliminary approval of this settlement under Federal Rule of Civil
Procedure 23(e). At the preliminary approval stage, the Court only determines if, on its face, the
proposed settlement is “at least sufficiently fair, reasonable and adequate to justify notice to
those affected and an opportunity to be heard” or, put another way, the Court is to make sure that
the settlement is within the range of possible approval. See In re NASDAQ Mkt.-Makers Antitrust
Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997) (“NASDAQ I”). As detailed below, the settlement is
well within the range for possible approval and should be preliminarily approved by this Court
under Rule 23(e).
II. BACKGROUND
A. The Litigation
This litigation began in early 2006. The First Consolidated Amended Complaint, filed in
February 2007, named more than two dozen defendant air carriers. After extensive motion
practice directed at the First Consolidated Amended Complaint, on August 21, 2009 (ECF No.
938), the Court denied the defendants’ motions to dismiss.
Additional defendants (including Air India) were named in complaints filed on February
12, 2010, and July 26, 2010. See Civil Action No. 10-CV-0639, ECF No. 1; Civil Action No. 10-
CV-3398, ECF No. 1. Plaintiffs alleged that the defendants, including Air India, conspired to
unlawfully fix prices of airfreight shipping services worldwide, including on cargo shipments to,
from, and within the United States, by, among other things, concertedly levying agreed-upon,
1 All terms used in this Memorandum and accompanying documents have the same meaning as
defined in the Settlement Agreement.
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artificially inflated surcharges in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The
additional defendants’ motions to dismiss were denied by the Court on November 1, 2010. The
parties completed extensive discovery, including the production of more than 18 million pages of
documents and more than 90 depositions around the globe.
After extensive briefing, numerous expert depositions, and a three-day evidentiary
hearing, including 20 hours of expert testimony held before Magistrate Judge Pohorelsky, on
October 15, 2014, Magistrate Judge Pohorelsky issued a 114-page Report and Recommendation
recommending that plaintiffs’ motion for class certification be granted. See ECF. No. 2055 (the
“Class Cert. R&R”). Magistrate Judge Pohorelsky also recommended that plaintiffs’ motion to
strike certain opinions of defendants’ experts David P. Kaplan and Dr. Michelle Burtis be
granted in part. See id. at 46-47. On July 10, 2015, the Class Cert R&R was adopted in its
entirety by the Court over defendants’ objections. See ECF No. 2282 (as amended on August 3,
2015 (ECF No. 2326)). Defendants sought to appeal under Rule 23(f), but, on November 3,
2015, the Second Circuit denied the motion. See Case 15-2361, Document 36. Per the Court’s
order of November 6, 2015, plaintiffs then sent a notice to class members informing them of the
Court’s ruling certifying the Class and setting January 22, 2016 as the date by which potential
class members’ election to opt out of the litigation class needed to be postmarked. See ECF No.
2370, ¶ 6.
Plaintiffs and the then remaining defendants filed summary judgment motions on April
24, 2015. Plaintiffs’ motions concerned the affirmative defenses of state action, act of state,
foreign sovereign compulsion, international comity, filed rate, and Noerr-Pennington.
Defendants Air India, Air China, Air New Zealand and Polar Air Cargo, LLC each filed a
motion based on its alleged non-involvement in the alleged world-wide conspiracy. All
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remaining defendants, including Air India, jointly filed a motion for partial summary judgment
on plaintiffs’ security surcharge claims. Defendants Air India, Air China, and Air New Zealand
jointly filed a motion for summary judgment for a purported failure to prove antitrust damages
caused by the alleged conspiracy and for damages allegedly barred by the statute of limitations.
On August 31, 2015, the Court denied defendants’ motions for summary judgment and
granted all of plaintiffs’ motions for judgment on defendants’ affirmative defenses. See ECF No.
2342 (minute entry).
Thus far, the Court has granted final approval to 25 settlements2 and preliminary approval
2 (1) Deutsche Lufthansa AG, Lufthansa Cargo AG, and Swiss International Air Lines Ltd.
(collectively “Lufthansa”): $85 million, plus the cost of providing notice to the class and cooperation (final approval granted September 25, 2009 (ECF No. 963)) (unlike subsequent settlements, which include payments only to direct purchasers, the Lufthansa settlement included payments both to direct and indirect purchasers); (2) Société Air France (“Air France”), Koninklijke Luchtvaart Maatschappij N.V. (“KLM”), and Martinair Holland N.V. (“Martinair”) (collectively “Air France/KLM”): $87 million, plus notice costs up to $500,000 and cooperation (final approval granted March 14, 2011 (ECF No. 1414)); (3) JAL: $12 million, plus cooperation (final approval granted March 14, 2011 (ECF No. 1417)); (4) AMR Corporation and American Airlines, Inc. (collectively, “AA”): $5 million, plus the cost of providing notice to the class and cooperation (final approval granted March 14, 2011 (ECF No. 1413)); (5) Scandinavian Airlines System and SAS Cargo Group A/S (collectively, “SAS”): $13.93 million, plus notice costs up to $500,000 and cooperation (final approval granted effective March 17, 2011 (ECF No. 1416)); (6) All Nippon Airways Co., Ltd. (“ANA”): $10.4 million, plus cooperation (final approval granted July 15, 2011 (ECF No. 1524)); (7) Cargolux Airlines International S.A. (“Cargolux”): $35.1 million, plus notice costs of up to $150,000 and cooperation (final approval granted July 15, 2011 (ECF No. 1524)); (8) Thai Airways International Public Company Limited (“Thai”): $3.5 million plus cooperation (final approval granted July 15, 2011 (ECF No. 1524)); (9) Qantas Airways Limited (“Qantas”): $26.5 million, plus notice costs of up to $250,000 and cooperation (final approval granted August 4, 2011 (ECF No. 1524)); (10) LAN Airlines, S.A., LAN Cargo S.A., and Aerolínhas Brasileiras, S.A. (“LAN/ABSA”): $66 million, plus notice costs up to $150,000 and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (11) British Airways PLC (“BA”): $89.512 million, plus notice costs up to $500,000 and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (12) Malaysia Airlines (“Malaysia”): $3.2 million, plus $150,000 toward the cost of notice and settlement administration and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (13) South African Airways (“SAA”): $3.29 million plus $150,000 toward the cost of notice and settlement administration and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (14) Saudi Arabian Airlines, Ltd. (“Saudia”): $14 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (15) Emirates: $7.833 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (16) El Al Israel Airlines Ltd. (“El Al”): $15.8 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (17) Air Canada and AC Cargo LP (collectively, “Air Canada”): $7.5 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (18) Salvatore Sanfilippo (“Sanfilippo”), a managerial employee of Defendant Air New Zealand: cooperation
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to two additional settlements.3 A motion for preliminary approval of the settlement with Air New
Zealand is pending. ECF No. 2459.
B. Settlement Negotiations
The plaintiffs engaged in settlement negotiations with Air India intermittently throughout
the last five years with little progress. See Declaration of Brent W. Landau in Support of Plaintiffs’
Motion for Preliminary Approval of Settlement with Defendant Air India Ltd., dated May 19, 2016
(“Landau Decl.”) ¶ 2. The parties then agreed to hold an all-day mediation before Eric D. Green,
a well-known mediator. Id. ¶ 3. The mediation was scheduled shortly before plaintiffs’ depositions
of Air India’s trial experts were to take place, and was attended by plaintiffs’ Co-Lead Counsel,
counsel for Air India, and four senior Air India executives, two of whom traveled from India. Id.
¶ 4.
During the mediation, the parties exchanged multiple offers and counteroffers, eventually
agreeing to the key terms of the settlement. Id. ¶ 5. The mediation culminated in execution of a
Memorandum of Understanding, subject to the approval of Air India’s board of directors. Id.
Following approval by the board, and additional negotiations regarding the terms of the settlement
agreement, counsel for plaintiffs and counsel for Air India signed the Settlement Agreement with
an execution date of May 17, 2016. Id. ¶ 6.
(final approval granted August 2, 2012 (ECF No. 1732)); (19) Korean Air Lines Co., Ltd.: $115 million and cooperation (ECF No. 2362); (20) Singapore Airlines Limited and Singapore Airlines Cargo PTE, Ltd. (“Singapore”): $92.5 million and cooperation (ECF No. 2362); (21) Cathay Pacific Airways Limited: $65 million and cooperation (ECF No. 2362); (22) China Airlines, Ltd.: $90 million and cooperation (ECF No. 2362); (23) Asiana Airlines, Inc.: $55 million and cooperation (ECF No. 2447); (24) Nippon Cargo Airlines Co., Ltd.: $36.35 million, plus $200,000 in notice costs and cooperation (ECF No. 2446); and (25) EVA Airways Corporation: $99 million, plus $200,000 in notice costs and cooperation (ECF No. 2445).
3 (1) Polar Air Cargo LLC, Polar Air Cargo Worldwide, Inc., and Atlas Air Worldwide Holdings, Inc. (“Polar”): $100 million (ECF No. 2402); and (2) Air China Limited and Air China Cargo Company Limited (“Air China”): $50 million (ECF No. 2418).
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Both sides vigorously negotiated their respective positions on all material terms of the
Settlement Agreement, and the negotiations were non-collusive. Id. ¶ 7. Having prosecuted this
case against over 30 alleged co-conspirators for more than 10 years, by the time of these
settlement negotiations, Class Counsel were well informed of the facts and issues concerning
liability and damages and the relative strengths and weaknesses of each side’s litigation position.
Id. ¶ 8.
The Settlement Agreement, attached to the Landau Declaration as Exhibit A, includes the
following material terms:
1. The Class
Pursuant to the Court’s Order dated July 10, 2015, as amended on August 3, 2015 (ECF
No. 2326), the Class is:
All persons or entities (but excluding Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government entities) who purchased airfreight shipping services for shipments to or from the United States directly from any of the Defendants or from any of their parents, predecessors, successors, subsidiaries, or affiliates, at any time during the period from January 1, 2000 up to and including September 30, 2006.
Settlement Agreement, ¶ 21.4 Therefore, it is not necessary for the Court to make a determination
of a settlement class for purposes of approving the Settlement Agreement.
2. The Settlement Fund
Pursuant to the terms of the Settlement Agreement, Air India will pay US $12.5 million
as follows: $6.25 million on or before June 1, 2016, and another US $6.25 million on or before
August 1, 2016. Id. ¶ 32. From the Settlement Amount, the sum of $250,000 may be used for
4 As defined in the Settlement Agreement, the term “Defendant” means any party named as a
defendant in the First Consolidated Amended Complaint in this Action or named thereafter as a defendant in the Action up to and including the Preliminary Approval Date. See Settlement Agreement, ¶ 9.
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reasonable costs of disseminating notice of the Settlement Agreement, including the cost of
administration. Id. ¶ 33. All income earned on the Settlement Fund shall become and remain part
of the Settlement Fund. Id. ¶ 36.
3. The Release
In exchange for Air India’s consideration, the Released Parties (as defined in the
Settlement Agreement) shall be completely released, acquitted, and forever discharged from any
and all claims, demands, actions, potential actions, suits and causes of action, losses, obligations,
damages, matters and issues of any kind or nature whatsoever, and liabilities of any nature on
account of or arising out of or resulting from or in any way related to any conduct regardless of
where it occurred at any time prior to the effective date concerning the direct purchase from Air
India or any other defendant of airfreight shipping services to or from the United States or
concerning the pricing, selling, discounting or marketing of airfreight shipping services for
shipments to or from the United States, including without limitation, claims based in whole or in
part on the facts, occurrences, transactions, or other matters alleged in the Action or otherwise
the subject of the Action (and specifically including, without limitation, claims in any way
related to cargo rates, fuel surcharges, security surcharges, insurance surcharges, United States
customs surcharges, war risk surcharges, commissions, incentives, rebates, credits, yields, or any
other element of the price of or the compensation related to Airfreight Shipping Services), which
arise under any antitrust, unfair competition, unfair practices, price discrimination, unitary
pricing, trade practice, consumer protection, unjust enrichment, civil conspiracy law, or any
other law.5 Id. ¶ 29. However, there is no release of any claims (a) made with respect to any
indirect purchase of airfreight shipping services; or (b) for negligence, breach of contract,
5 The full language of the release provisions is found at ¶¶ 29-31 of the Settlement Agreement.
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bailment, failure to deliver, lost goods, damaged or delayed goods or similar claims between any
of the released parties and any of the releasing parties relating to airfreight shipping services. Id.
III. ARGUMENT
A. The Settlement of Complex Litigation Is Favored
Plaintiffs and Air India have reached an agreement that maximizes plaintiffs’ recovery.
Plaintiffs have avoided the potential risks inherent in complex antitrust class action litigation and
secured a substantial cash payment from Air India. Reaching such a positive result prior to
engaging in a lengthy trial where the outcome is uncertain enhances the attractiveness of this
settlement. See In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 455 (S.D.N.Y. 2004)
(“[F]ederal courts favor settlement, especially in complex and large-scale disputes, so as to
encourage compromise and conserve judicial and private resources.”). Further, the Court should
be mindful of the “general policy favoring settlement.” In re Air Cargo Shipping Servs. Antitrust
Litig., No. 06-md-1775, 2009 WL 3077396, at *6 (E.D.N.Y. Sept. 25, 2009) (approving the
Lufthansa settlement); see also In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-
01775, 2011 WL 2909162, at *3 (E.D.N.Y. July 15, 2011); Report & Recommendation (ECF
No. 625) (the “Lufthansa Prel. App. R&R”), at 14; Bourlas v. Davis Law Assocs., 237 F.R.D.
345, 354-55 (E.D.N.Y. 2006) (noting that class actions are amenable to settlement “because of
the difficulties of proof, the uncertainties of the outcome, and the typical length of the
litigation”); Bano v. Union Carbide Corp., 273 F.3d 120, 129-30 (2d Cir. 2001).
B. The Proposed Settlement Exceeds the Standards for Preliminary Approval
When parties to a class action seek to settle, they must proceed before the court in two
steps: first, they must seek preliminary approval of the proposed settlement and then, should such
preliminary approval be granted, they must provide notice to the class and appear at a fairness
hearing, after which the court may grant final approval to the settlement. See Manual for
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Complex Litigation (Fourth) § 21.63 (2004); NASDAQ I, 176 F.R.D. at 102. Because the first
step of this process is only “preliminary,” the standards for preliminary approval are less
exacting than those applied to final approval. “[A] court must determine whether the terms of the
proposed settlement warrant preliminary approval. In other words, the court must make ‘a
preliminary evaluation’ as to whether the settlement is fair, reasonable and adequate.” In re
(S.D.N.Y. Nov. 8, 2006) (citation omitted); see also Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,
396 F.3d 96, 116 (2d Cir. 2005). Preliminary approval of a proposed settlement is granted so
long as the settlement was arrived at through a fair process and the terms of the settlement are
within the “range of possible approval.” NASDAQ I, 176 F.R.D. at 102 (emphasis added).
In conducting this inquiry, a court considers both the negotiating process leading up to
the settlement and the settlement’s substantive terms. Global Crossing, 225 F.R.D. at 455. A
court determines whether the settlement is “at least sufficiently fair, reasonable and adequate to
justify notice to those affected and an opportunity to be heard.” NASDAQ I, 176 F.R.D. at 102
(citations omitted). Preliminary approval should be granted “if the settlement is the result of
serious, informed and non-collusive negotiations and the proposed settlement has no obvious
deficiencies, such as giving preferential treatment to class representatives, or granting excessive
attorneys’ fees.” In re Med. X-Ray Film Antitrust Litig., No. CV 93-5904, 1997 WL 33320580, at
*6 (E.D.N.Y. Dec. 26, 1997) (citing NASDAQ I, 176 F.R.D. 99, and Manual for Complex
Litigation (Third) § 30.14 (1995)). In considering preliminary approval, the sole issue is whether
the proposed settlement falls within the range of possible approval. NASDAQ I, 176 F.R.D. at
102.
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The negotiations here were conducted by experienced counsel on both sides at arm’s
length, and included an all-day mediation. See Landau Decl. ¶¶ 4, 6. At this late stage in the
litigation process, Plaintiffs’ counsel were well-informed of the material facts and risks
associated with litigating the case through trial, and the negotiations were non-collusive. Id. ¶¶ 7-
8. Further, the substantial cash payment represents more than 10% of Air India’s relevant sales
during the class period, making it among the higher settlements received when measured on that
basis. Based upon these facts, preliminary approval is warranted, and, as will be demonstrated in
detail at the final fairness hearing, this settlement is a “fair, reasonable, and adequate” settlement
of the class claims. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974).6
1. The Proposed Settlement Is the Result of Arm’s-Length Negotiations Conducted by Highly Experienced Counsel.
The process that led to this proposed settlement was facilitated by a highly experienced
mediator and was fairly conducted by highly-qualified counsel who sought to obtain the best
possible result for their clients and the Class. When counsel engages in an arm’s-length
negotiation that results in a settlement, courts find that the settlement is entitled to a presumption
of fairness. See In re Air Cargo Shipping Servs. Antitrust Litig., 2009 WL 3077396, at *7
(finding Lufthansa settlement “procedurally fair because it was the product of arm’s length
6 There are nine relevant factors that courts consider in evaluation a settlement’s substantive terms at
the time of final approval: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463. As this Court has recognized, there is little to be gained by applying the Grinnell factors at the preliminary approval stage. See Bourlas, 237 F.R.D. at 356 n.7 (“it is apparent that several of the Grinnell factors themselves were designed for application at a later stage in the class settlement approval process”). As a result, they are discussed here only when they provide a useful guide to assess the settlement’s fairness at this stage.
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10
negotiations between experienced and able counsel”); see also In re Air Cargo Shipping Servs.
Antitrust Litig., 2011 WL 2909162, at *4; In re NASDAQ Mkt.-Makers Antitrust Litig., 187
F.R.D. 465, 474 (S.D.N.Y. 1998) (“NASDAQ II”) (“[s]o long as the integrity of the arm’s length
negotiation process is preserved … a strong initial presumption of fairness attaches to the
proposed settlement”); In re Sterling Foster & Co. Sec. Litig., 238 F. Supp. 2d 480, 484
(E.D.N.Y. 2002); In re Twinlab Corp. Sec. Litig., 187 F. Supp. 2d 80, 83 (E.D.N.Y. 2002); In re
Joint E. & S. Dists. Asbestos Litig., 878 F. Supp. 473, 567 (E.D.N.Y. 1995). Further, when the
settlement that results from such negotiations is being championed by experienced and informed
counsel, courts afford counsel’s opinion considerable weight because they are closest to the facts
and risks associated with the litigation itself. See Joint E., 878 F. Supp. at 567 (“[a] substantial
factor in determining the fairness of a settlement is the opinion of counsel involved in the
settlement” (citations omitted)); In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 125
(S.D.N.Y. 1997) (stating that “great weight” is accorded to the recommendations of counsel, who
are most closely acquainted with the facts of the underlying litigation), aff’d, 117 F.3d 721 (2d
Cir. 1997). The process that led to this settlement confirms that the initial presumption of
fairness is correct.
The Court has found that Class Counsel are highly capable and have the requisite
qualifications and experience to handle this litigation. See Class Cert. R&R at 56 (“as the court
has already noted on several occasions, the proposed class counsel is undoubtedly qualified to
maintain this action”), adopted July 10, 2015, and amended on August 3, 2015; Lufthansa Prel.
App. R&R, at 8-9; see also In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57
(E.D.N.Y. 2006); In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1775, 2012 WL
3138596, at *4 (E.D.N.Y. Aug. 2, 2012) (incorporating the reasoning and conclusions set forth in
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11
the Court’s previous opinions approving settlements in this litigation); In re Air Cargo Shipping
Servs. Antitrust Litig., 2011 WL 2909162, at *6; In re Air Cargo Shipping Servs. Antitrust Litig.,
2009 WL 3077396, at *7. Here, settlement negotiations involved a day-long mediation by an
experienced mediator, and follow-up telephone and email communications. See Landau Decl.
¶¶ 4-6. The discussions were meaningful and informed as Class Counsel took steps to ensure that
they had all of the necessary information to advocate for a fair settlement that served the best
interests of the Class. Id. ¶¶ 7-8. Class Counsel analyzed and evaluated the contested legal and
factual issues posed by the litigation so that adequate demands could be made. See id.; see also
Class Cert. R&R at 47-110 (analyzing issues in context of class certification); In re Air Cargo
Shipping Servs. Antitrust Litig., 2009 WL 3077396, at *7 (discussing negotiation process
arriving at Lufthansa settlement). Class Counsel were well informed of the facts of the case and
the strength of the claims asserted when the terms of the Settlement Agreement were negotiated.
See Global Crossing, 225 F.R.D. at 458.
2. The Proposed Settlement Falls Within the Range of Possible Approval.
To preliminarily approve this settlement, the Court must decide that the proposed
settlement falls within the range of settlement that could possibly be approved as “fair,
reasonable and adequate.” NASDAQ I, 176 F.R.D. at 102. The settlement here provides for a
substantial cash payment. Continuing this litigation against Air India would entail a highly
expensive legal battle, involving complex legal and factual issues where motions in limine and
Daubert motions would be vigorously contested. At trial, the ultimate outcome remains uncertain
for both parties because it would turn on questions of proof, many of which would be the subject
of complicated expert opinions, particularly with regard to damages. See NASDAQ II, 187 F.R.D.
at 475-76. In denying defendants’ summary judgment motions, the Court stated that the
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12
defendants “raise[d] difficult questions that are defendant specific” which “may in the end of the
day be very persuasive arguments to the jury as to why a jury should not conclude that these
remaining entities were involved in this conspiracy.” Hr’g. Tr., 93-94, ECF No. 2351. Given this
uncertainty, “[a] very large bird in the hand in this litigation is surely worth more than whatever
birds are lurking in the bushes.” In re Chambers Dev. Sec. Litig., 912 F. Supp. 822, 838 (W.D.
Pa. 1995).
The Settlement Amount represents in excess of 10% of Air India’s sales of Airfreight
Shipping Services to and from the United States to Class Members during the Class Period, well
above prior settlements in this action. Plaintiffs achieved this excellent result even though, unlike
many of the other air carriers that have settled, the Department of Justice elected not to bring
charges against Air India.
Based upon the foregoing, the Settlement Agreement is well within the possible range of
approval as a “fair, reasonable, and adequate” settlement of the Class’s claims. See Grinnell, 495
F.2d at 463.
C. Notice to the Class
Plaintiffs will submit notice regarding the Settlement Agreement to Class Members
informing them of their rights with respect to the proposed settlement. Plaintiffs propose
combining notice of this settlement with the two settlements that have received preliminary
approval – Polar and Air China – and, if preliminarily approved, with the Air New Zealand
settlement. See Settlement Agreement, ¶ 24.
IV. PRELIMINARY APPROVAL ORDER
Plaintiffs respectfully submit that the proposed Settlement Agreement with Air India falls
well within the range of possible approval. Plaintiffs therefore request that the Court:
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13
1. Preliminarily approve the Settlement Agreement and find that its terms are
sufficiently fair, reasonable, and adequate for notice to be issued to the Class;
2. Order Class Counsel to disseminate notice to the Class, upon submission of
proposed notices and approval by the Court of the form of notice and the notice
plan; and
3. Approve The Garden City Group as Administrator of the Settlement and Citibank,
N.A. as escrow agent.
V. CONCLUSION
For the foregoing reasons, the Court should grant plaintiffs’ motion for preliminary
approval of this settlement with Air India.
Dated: May 19, 2016
Respectfully Submitted,
/s/ Brent W. Landau /s/ Howard J. SedranBrent W. Landau Howard J. SedranMichael D. Hausfeld Austin B. CohenHilary K. Scherrer Keith J. VerrierMelinda R. Coolidge LEVIN, FISHBEIN, SEDRAN & BERMAN
HAUSFELD LLP 510 Walnut Street1700 K Street NW Philadelphia, PA 19106Suite 650 (215) 592-1500Washington, DC 20006(202) 540-7200
/s/ Robert N. Kaplan /s/ Hollis SalzmanRobert N. Kaplan Hollis SalzmanGregory K. Arenson Meegan HollywoodElana Katcher ROBINS KAPLAN LLPKAPLAN FOX & KILSHEIMER LLP 601 Lexington Avenue, Suite 3400850 Third Avenue, 14th Floor New York, NY 10022New York, NY 10022 (212) 980-7400(212) 687-1980
Gary L. SpecksKAPLAN FOX & KILSHEIMER LLP
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14
423 Sumac RoadHighland Park, IL 60035(847) 831-1585
Class Counsel
Case 1:06-md-01775-BMC-VVP Document 2461-1 Filed 05/19/16 Page 18 of 18 PageID #: 111632
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
INRE
AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION
MDLNo. 1775
Master File 06-MD-1775 (BMC) (VVP)
THIS DOCUMENT RELATES TO: All Actions
DECLARATION OF BRENT W. LANDAU IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT
WITH DEFENDANT AIR INDIA LTD.
I, Brent W. Landau, declare:
1. I am a partner in the law firm of Hausfeld LLP. The Court has appointed my firm
as one of four Co-Lead Counsel in this case. I submit this declaration in support of Plaintiffs'
Motion for Preliminary Approval of Settlement with Defendant Air India Ltd. ("Air India"),
dated May 19,2016. I have personal knowledge ofthe information set forth in this declaration.
2. Plaintiffs and Air India discussed the possibility of settlement intermittently for
the last five years.
3. Within the last few months, the parties agreed to hold an all-day mediation before
Eric D. Green, a well-known mediator.
4. The mediation was held shortly before plaintiffs' depositions of Air India's trial
experts were scheduled to occur, and was attended by plaintiffs' Co-Lead Counsel, counsel for
Air India, and a four senior Air India executives.
5. During the mediation, the parties exchanged multiple offers and counteroffers,
culminating in an agreement in principle. The parties executed a Memorandum of
Understanding, subject to the approval of Air India's board of directors.
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6. Following additional negotiations regarding the terms of the settlement agreement
by telephone and email, counsel for plaintiffs and counsel for Air India signed the Settlement
Agreement with an execution date of May 17, 2016. A true and correct copy of the Settlement
Agreement is attached hereto as Exhibit A.
7. Both sides vigorously negotiated their respective positions on all material terms of
the Settlement Agreement and the negotiations were non-collusive.
8. In connection with these settlement negotiations, Class Counsel were well
informed of the facts and issues concerning liability and damages and the relative strengths and
weaknesses of each side's litigation position.
9. I declare under penalty of perjury that the foregoing is true and correct.
Executed this 19th day ofMay, 2016 in Philadelphia, Pennsylvania.
~wd~ Brent W. Landau
- 2-
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Exhibit A
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
IN RE: AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION
MDL No. 1775
Master File 06-MD-1775 (BMC) (VVP)
ALL CASES
SETTLEMENT AGREEMENT
This Settlement Agreement (the “Agreement”) is made and entered into as of this 17th
day of May, 2016 (the “Execution Date”), by and between Air India Ltd. (“Air India”) (“Settling
Defendant”) and Class Representatives Benchmark Export Services, FTS International Express,
Inc., R.I.M. Logistics, Ltd., Olarte Transport Service, Inc., S.A.T. Sea & Air Transport, Inc. and
Volvo Logistics AB (collectively, “Plaintiffs”), both individually and on behalf of a certified
class of persons who purchased Airfreight Shipping Services (as defined below) for shipments to
or from the United States directly from Settling Defendant or any other Defendant (as defined
below) in the Action (as defined below) during the period from and including January 1, 2000 up
to and including September 30, 2006.
WHEREAS, Plaintiffs are prosecuting the Action on their own behalf and on behalf of
the Class (as defined below);
WHEREAS, Plaintiffs allege that Settling Defendant participated in an unlawful
conspiracy to raise, fix, maintain, or stabilize the prices of Airfreight Shipping Services for
shipments to or from the United States at artificially high levels in violation of Section 1 of the
Sherman Act;
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2
WHEREAS, Settling Defendant denies Plaintiffs’ allegations and have asserted a number
of defenses to Plaintiffs’ claims;
WHEREAS, Plaintiffs and Settling Defendant agree that neither this Agreement nor any
statement made in the negotiation thereof shall be deemed or construed to be an admission by or
evidence against Settling Defendant or any of their alleged co-conspirators or evidence of the
truth of any of the Plaintiffs’ allegations;
WHEREAS, arm’s-length settlement negotiations have taken place (with the assistance
of an experienced mediator) between Class Counsel (as defined below) and counsel for Settling
Defendant, and this Agreement has been reached as a result of those negotiations;
WHEREAS, Plaintiffs have conducted an investigation into the facts and the law
regarding the Action and have concluded that a settlement with Settling Defendant according to
the terms set forth below is in the best interest of Plaintiffs and the Class;
WHEREAS, the Action will continue against Defendants that are not Released Parties (as
defined below);
WHEREAS, Settling Defendant, despite its belief that it has good defenses to the claims
alleged, has nevertheless agreed to enter into this Agreement to avoid the expense,
inconvenience, and the distraction of potentially burdensome and protracted litigation; and
WHEREAS, Settling Defendant has agreed to cooperate with Plaintiffs as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, agreements
and releases set forth herein and for other good and valuable consideration, it is agreed by and
among the undersigned that claims that have been or could be asserted in the Action be settled
and compromised as to Settling Defendant and all other Released Parties, without costs as to
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3
Plaintiffs, the Class, or Settling Defendant, subject to the approval of the Court (as defined
below), on the following terms and conditions.
A. Definitions
The following terms, as used in this Agreement have the following meanings:
1. “Action” means the action captioned In re Air Cargo Shipping Services Antitrust
Litigation, 06-MD-1775 (JG)(VVP) (E.D.N.Y.), which is currently pending in the United States
District Court for the Eastern District of New York, and all actions filed in or transferred to the
Eastern District of New York for consolidation and/or coordination with the above-captioned
multidistrict litigation, specifically including, but not limited to, the actions captioned
Benchmark Export Services et al. v. AMR Corporation and American Airlines, Inc., Case No. 10-
CV-3398 (JG) (VVP) (E.D.N.Y.), Benchmark Export Services et al. v. China Airlines Ltd., Case
No. 10-CV-0639 (JG) (VVP) (E.D.N.Y.), Benchmark Export Services et al. v. McCaffrey, Case
No. 10-CV-10253-NMG (D. Mass.), Benchmark Export Services et al. v. De Jong, Case No.
2:10-CV-00007-TB (E.D.N.C.), and Benchmark Export Services et al. v. Sanfilippo, Case No.
10-CV-01374 JG-VVP (E.D.N.Y.), all actions pending such transfer (including but not limited to
“tag-along” actions) and all actions that may be transferred in the future, or are otherwise based
on the conduct alleged in the above-captioned multidistrict litigation.
2. “Airfreight Shipping Services” means paid private air transport of freight or other
cargo by any airline acting as a provider of such services.
3. “Claims” shall mean any and all actions, suits, claims, rights, demands, assertions,
allegations, causes of action, controversies, proceedings, losses, damages, injuries, attorneys’
fees, costs, expenses, debts, liabilities, judgments, or remedies, whether equitable or legal,
resulting from a direct purchase of Airfreight Shipping Services.
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4
4. “Class” means, pursuant to the Court’s Order dated July 10, 2015 (ECF No. 2282)
and as amended on August 3, 2015 (ECF No. 2326), all persons or entities (but excluding
Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government
entities) who purchased airfreight shipping services for shipments to or from the United States
directly from any of the Defendants or from any of their parents, predecessors, successors,
subsidiaries, or affiliates, at any time during the period from January 1, 2000 up to and including
September 30, 2006.
5. “Class Counsel” shall refer to the law firms of Hausfeld LLP, 1700 K Street NW,
Suite 650, Washington, DC 20006; Kaplan Fox & Kilsheimer LLP, 850 Third Avenue, 14th
Floor, New York, NY 10022; Robins Kaplan LLP, 601 Lexington Avenue, Suite 3400, New
York, NY 10022-4611; and Levin, Fishbein, Sedran & Berman, 510 Walnut Street, Philadelphia,
PA 19106.
6. “Class Member” means each member of the Class who did not timely and validly
elect to be excluded from the Class before January 22, 2016, pursuant to the Court’s Order dated
November 6, 2015 (ECF No. 2370).
7. “Class Period” means the period from and including January 1, 2000 up to and
including September 30, 2006.
8. “Court” means the United States District Court for the Eastern District of New
York.
9. “Defendant” means any party named as a defendant in the First Consolidated
Amended Complaint in In re Air Cargo Shipping Services Antitrust Litigation, 06-MD-1775
(JG)(VVP) (E.D.N.Y.) or otherwise named as a defendant in the Action at any time up to and
including the Preliminary Approval Date (as defined below).
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5
10. “Effective Date” means the first date by which all of the following have occurred:
(a) the Court has entered a final judgment approving this Agreement under Rule 23(e) of the
Federal Rules of Civil Procedure; (b) the Court has entered a final judgment dismissing the
Action as against any Released Party who is a Defendant with prejudice as to all Class Members
and without costs; and (c) the time for appeal or to seek permission to appeal from the Court’s
approval of this Agreement and entry of a final judgment as described in clause (a) above has
expired, or, if appealed, approval of this Agreement and the final judgment has been affirmed in
its entirety by the court of last resort to which such appeal has been taken and such affirmance
has become no longer subject to further appeal or review. Neither the provisions of Rule 60 of
the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into
account in determining the above-stated times.
11. “Escrow Account” is the account referenced in Paragraph 32 to maintain the
Settlement Fund (as defined below) established pursuant to the terms and conditions set forth in
an escrow agreement to be entered into with Citibank N.A., as Escrow Agent (as defined below),
subject to the approval of Plaintiffs and Settling Defendant.
12. “Escrow Agent” means the third party responsible for managing and
administering the Escrow Account in accordance with this Agreement, any agreement
establishing the Escrow Account and any Order by the Court.
13. “Preliminary Approval Date” means the date on which the Court enters an order
granting preliminary approval of this Agreement.
14. “Released Claims” shall refer to the claims described in Paragraph 29 of this
Agreement.
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6
15. “Released Parties” shall refer jointly and severally, individually and collectively,
to Settling Defendant, its predecessors, successors, past and present parents, subsidiaries,
affiliates, divisions, and departments, and each of their respective past and present officers,
directors, employees, agents, attorneys, servants, and representatives, and the predecessors,
successors, heirs, executors, administrators, and assigns of each of the foregoing.
Notwithstanding any part of the foregoing, however, for purposes of this Agreement, “Released
Parties” does not include any Defendant other than the Settling Defendant. As used in this
definition, “affiliates” means entities controlling, controlled by or under common control with
any of the Released Parties.
16. “Releasing Parties” shall refer jointly and severally, and individually and
collectively, to the Plaintiffs, the Class Members, their predecessors, successors, past and present
parents, subsidiaries, affiliates, divisions, and departments, and each of their respective past and
present officers, directors, employees, agents, attorneys, servants, and representatives, and the
predecessors, successors, heirs, executors, administrators, and assigns or transferees, immediate
and remote, of each of the foregoing. As used in this definition, “affiliates” means entities
controlling, controlled by, or under common control with, any of the Releasing Parties.
17. “Settlement Amount” means $12,500,000 in U.S. dollars.
18. “Settlement Fund” shall be the amount paid by Settling Defendant in settlement of
the Action pursuant to Paragraph 32 of this Agreement and any income earned on amounts in the
fund.
19. “Settlement Hearing” has the meaning attributed to it in Paragraph 26(a).
20. “Settling Defendant’s Counsel” shall refer to the law firm of Ruskin Moscou
Faltischek or any firm later retained by Settling Defendant to represent it in this Action.
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7
B. Class Certification
21. Pursuant to the Court’s Order dated July 10, 2015 (ECF No. 2282), as amended
on August 3, 2015 (ECF No. 2326), the requirements of Rule 23(a) and 23(b)(3) of the Federal
Rules of Civil Procedure are satisfied, and the following Class was certified:
All persons or entities (but excluding Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government entities) who purchased airfreight shipping services for shipments to or from the United States directly from any of the Defendants, or from any of their parents, predecessors, successors, subsidiaries, or affiliates, at any time during the period from January 1, 2000 up to and including September 30, 2006.
C. Approval of this Agreement, Notice, and Dismissal of Claims
22. Plaintiffs and Settling Defendant shall use all reasonable efforts to effectuate this
Agreement, including cooperating in Plaintiffs’ effort to obtain the Court’s approval of
procedures (including the giving of class notice under Rules 23(c) and 23(e) of the Federal Rules
of Civil Procedure), and to secure the prompt, complete, and final dismissal with prejudice of the
Action as to Settling Defendant.
23. Promptly after the Execution Date of this Agreement, Plaintiffs shall submit to the
Court a motion for preliminary approval of the settlement. The motion shall include the
proposed form of an order preliminarily approving this Agreement, the text of which shall be
agreed upon by Plaintiffs and Settling Defendant before submission of the motion.
24. Plaintiffs may, as practicable, combine dissemination of notice of this Agreement
with notice of other settlement agreements reached with other Defendants. The text of the notice
shall be agreed upon by Plaintiffs and Settling Defendant before submission of the notice to the
Court for approval.
25. Settling Defendant shall notify federal and state officials of this settlement as
specified in 28 U.S.C. §§ 1715(a) & (b).
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8
26. Notice to the Class shall be given as follows, or as otherwise deemed sufficient by
the Court:
(a) After preliminary approval of this Agreement and submission to the Court of the proposed forms of mail and publication notice, Class Counsel shall, in accordance with Rule 23 of the Federal Rules of Civil Procedure and the Court’s order, provide those members of the Class who have been identified by reasonable means in connection with the prior settlements, with notice by first class mail of the settlement and the date of the hearing scheduled by the Court to consider the fairness, adequacy and reasonableness of the proposed settlement (the “Settlement Hearing”).
(b) After preliminary approval of this Agreement and submission to the Court of the proposed forms of mail and publication notice, Class Counsel shall, in accordance with Rule 23 of the Federal Rules of Civil Procedure and the Court’s order, cause a summary notice of the settlement and the Settlement Hearing to be published one time in the national and international editions of The Wall Street Journal and in each of the publications identified in Paragraph 3 of Judge Gleeson’s Court Order dated October 21, 2010 (Air Cargo World (U.S. only); Air Cargo Week; Cargonews Asia; International Transport Journal; American Shipper; Airport Press; American Journal of Transportation; Inbound Logistics; Logistics Management; and Air Transport World), unless publication in any of the proposed publications is impracticable, in which case notice will be published in substitute publications as deemed appropriate by the Claims Administrator.
27. Plaintiffs shall seek entry of an order and a final judgment, the text of which shall
be agreed upon by Plaintiffs and Settling Defendant before submission to the Court:
(a) approving this Agreement and its terms as being a fair, reasonable, and adequate settlement as to the Class within the meaning of Rule 23 of the Federal Rules of Civil Procedure, and directing its consummation according to its terms;
(b) reserving to the Court exclusive jurisdiction over the settlement and this Agreement, including the administration and consummation of this settlement;
(c) requiring Class Counsel to file with the Clerk of the Court a record of potential members of the Class who timely and validly excluded themselves from the Class before January 22, 2016, and to provide a copy of the record to Settling Defendant’s Counsel; and
(d) dismissing the Action with prejudice as to the Released Parties.
28. This Agreement shall become final only upon occurrence of the Effective Date.
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9
D. Release and Discharge
29. Upon the occurrence of the Effective Date and in consideration of the payment by
Settling Defendant of the Settlement Amount, the Releasing Parties shall be deemed to and do
hereby completely, finally and forever release, acquit, and discharge the Released Parties from
any and all claims, demands, actions, potential actions, suits, and causes of action, losses,
obligations, damages, matters and issues of any kind or nature whatsoever, and liabilities of any
nature, including without limitation claims for costs, expenses, penalties, and attorneys’ fees,
whether class, individual, or otherwise, that the Releasing Parties, or any of them, ever had, now
has, or hereafter can, shall, or may have directly, representatively, derivatively or in any other
capacity against any of the Released Parties, whether known or unknown, suspected or
unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, accrued or
unaccrued, matured or unmatured, disclosed or undisclosed, apparent or unapparent, liquidated
or unliquidated, or Claims that have been, could have been, or in the future might be asserted in
law or equity, on account of or arising out of or resulting from or in any way related to any
conduct regardless of where it occurred at any time prior to the Effective Date concerning the
direct purchase from Settling Defendant or any other Defendant of Airfreight Shipping Services
to or from the United States or concerning the pricing, selling, discounting, or marketing of
Airfreight Shipping Services for shipments to or from the United States, including without
limitation, Claims based in whole or in part on the facts, occurrences, transactions, or other
matters alleged in the Action, or otherwise the subject of the Action (and specifically including,
without limitation, Claims in any way related to cargo rates, fuel surcharges, security surcharges,
insurance surcharges, United States customs surcharges, war risk surcharges, commissions,
incentives, rebates, credits, yields, or any other element of the price of or the compensation
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10
related to Airfreight Shipping Services), which arise under any antitrust, unfair competition,